Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option to extend the term of this Lease for two (2) additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essence.
Appears in 1 contract
Samples: Lease Agreement (Dj Orthopedics Inc)
Options to Extend. Provided that, at The Tenant has the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option options to extend the term Initial Term of this Lease for two (2) additional periods of successive five (5) years year term(s) (each an “Extended Term” or collectively, the “Extended Terms”), the exercise of which shall automatically extend the Term of this Lease without the necessity of additional documentation. So long as there does not exist any continuing, uncured Event of Default hereunder at such time of exercise, the option to extend the first Extended Term shall be deemed to have been exercised by Tenant’s notification to Landlord that it elects to exercise its option to extend at least twelve (12) months, but not more than eighteen (18) months, prior to the end of the Initial Term hereunder and, as to the second Extended Term, at least twelve (12) months, but not more than eighteen (18) months, prior to the end of the first Extended Term. The Extended Term(s) shall be upon the same terms and conditions as are set forth in this Lease, including, without limitation, the Tenant’s obligations to pay Operating Cost Escalation as set forth in Section 4.2, except that (i) there shall be no additional option to extend after the termination of the second Extended Term or the failure to exercise the first or second option, as applicable option, whichever shall first occur, (ii) the annual Fixed Rent for the Extended Terms shall be equal to ninety-five percent (95%) of the Market Rent (as defined in and determined in accordance with Exhibit H), and (iii) there shall be no allowances, abatements or initial rental concessions as may have been provided for herein with respect to the Initial Term and (iv) the Base Year Operating Costs for such Extended Term shall be the amount of Landlord’s Operating Costs for the calendar year ending December 31 of the first year of such Extended Term (grossed up to reflected 95% occupancy as set forth in Section 4.2). Notwithstanding the foregoing, in no event, however, shall the annual Fixed Rent for the first Extended Term be less than the annual Fixed Rent and additional rent payable during the last year of the Initial Term (after taking into account the free rent and other concessions applicable to the Base Initial Term, except which for such purposes shall be amortized on a straight line basis over the Initial Term), and in no event shall the annual Fixed Rent for the amount second Extended Term be less than the annual Fixed Rent and additional rent payable during the last year of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Extended Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essence.
Appears in 1 contract
Samples: Lease Agreement (Zoran Corp \De\)
Options to Extend. Provided that, at Lessor hereby grants to lessee the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option to extend the term of this Lease for two ( (21) ) additional periods (36) month period(s) commencing when the prior term expires upon each and all of five (5) years each upon the same following terms and conditions herein applicable conditions:
(i) Lessee gives to lessor, and Lessor actually receives on a date which is prior to the Base Term, except for date that the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, period would commence (if exercised) by at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty least (604) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (126) months prior to the expiration of the Base Termmonths, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminateoption(s) to extend this lease for said additional term(s), time being of essence. if said notification of the essenceexercise of said option(s) is (are) not so given and received, the option(s) shall automatically expire; said option(s) may (if more than one) only be exercised consecutively;
(ii) The provisions of paragraph 39, including the provision relating to default of Lessee set forth in paragraph 39.4 of this lease are conditions of this Option;
(iii) All of the terms and conditions of this Lease except where specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be calculated as follows, using the method(s) indicated below: (Check Method(s) to be Used and Fill in Appropriately) _ |_| I. Cost of Living Adjustment(s) (COL)
(a) On (Fill in COL Adjustment Date(s): the first (1st) day of the nineteenth (19th) month of herein option term. -------------------------------------------------------------------------------- the monthly rent payable under paragraph 1.5 ("Base Rent") of the attached Lease shall be adjusted by the change, if any, from the Base month specified below, in the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for(select one): |X| CPIW (Urban Wage Earners and Clerical Workers) or |_| CPIU (All Urban Consumers), for (Fill in Urban Area): Los Angeles - Anaheim Riverside, All Items (1982-1984 = 100), herein referred to as "C.P.I."
(b) The monthly rent payable in accordance with paragraph Al(a) of this Addendum shall be calculated as follows: The Base Rent set forth in paragraph 1.5 of the attached Lease, shall be multiplied by a fraction the numerator of which shall be the C.P.I. of the calendar month 2 (two) months prior to the month(s) specified in paragraph AI(a) above during which the adjustment is to take effect, and the denominator of which shall be the C.P.I. of the calendar month which is two (2) months prior to (select one): |_| the first month of the term of this Lease as set forth in paragraph 1.3 ("Base Month") or [X] (Fill in Other "Base Month"): June 1, 2000 . The sum so calculated shall constitute the new monthly rent hereunder, but in no event, shall any such new monthly rent be less than the rent payable for the month immediately preceding the date for rent adjustment.
(c) In the event the compilation and/or publication of the C.P.I. shall be transferred to any other governmental department or bureau or agency or shall be discontinued, then the index most nearly the same as the C.P.I. shall be used to make such calculation. In the event that Lessor and Lessee cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitrators shall be paid equally by Lessor and Lessee. 49
Appears in 1 contract
Options to Extend. Provided that, at 15.1 So long as Digital Microwave Corporation is the time of giving notice of exercise or at Tenant hereunder and occupies the commencement entirety of the First or Second Option TermLeased Premises, as applicable, no Event of Default or Inchoate Default has occurred which is continuingand subject to the condition set forth in clause (b) below, Tenant shall have the right and option two options to extend the term of this Lease with respect to the entirety of the Leased Premises; the flat for two (2) additional periods a period of five (5) years each upon from the same terms and conditions herein applicable to the Base Term, except for the amount expiration of the Annual Base Renttenth year of the Lease Term (the "First Extension Period"), the first option being referred to herein as the “First Option,” and the second option being referred to herein as (the “"Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time Extension Period") for a period of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which years from the term is extended in expiration of the event first Extension Period, subject to the First Option is exercised is referred following conditions:
(a) Each option to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant extend shall exercise the First Optionbe exercised, if at all, by giving written notice of exercise given to Landlord of such exercise not less than nine (9) months and by Tenant not more than twelve (12) months nor less than nine months prior to the expiration of the Base Term, and Tenant shall exercise tenth year of the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to Lease Term or the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentenceExtension Period, Landlord shall, by the later of (a) thirty (30) days after such request and as applicable;
(b) ten (10) months before Anything herein to the contrary notwithstanding, if Tenant is in default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Option TermExtension Period, as applicable, provide Tenant with Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a written notice setting forth Landlord’s estimate of timely, fashion, the Fair Market Rental Lease shall be extended for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise term of the applicable Option within the time provided above, such Option shall automatically terminate, time being extension period upon all of the essence.terms and conditions of this Lease, provided that the Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, increased as set forth below. For purposes hereof, "Fair Market Rent" shall mean the Base Monthly Rent determined pursuant to the process described below. In no event, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in a decrease of the Base Monthly Rent for the Leased Premises below the amount due from Tenant for the
Appears in 1 contract
Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant (a) Lessee shall have the right and option to extend the term of this Lease (each an "Option") for two three (23) additional periods of five (5) years each (each an "Option Period") commencing on the Expiration Date, as may be extended by an Option Period, upon the same following terms and conditions herein applicable to the Base Term, except for the amount conditions:
(1) That Lessee is not in default under any of the Annual Base Rentterms, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to hereincovenants, individually, as an “Option” and collectively, as the “Options.” In the event that, conditions or provisions of this Lease either at the time of giving notice of exercise Lessee exercises the Option or at the commencement as of the First or Second Option Termexpiration date, as applicable, may be extended by an Inchoate Default has occurred which is continuing, Landlord Option Period;
(2) That Lessee shall provide Tenant with written notice thereof, Tenant not have assigned its interest under this Lease nor sublet more than fifty percent (50%) of the Premises; and
(3) That Lessee shall have sixty (60) days notified Lessor of Lessee's election to cure exercise such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives manner provided in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and Section 22 not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not nor less than nine (9) months and not more than twelve (12) months prior to the expiration then current Expiration Date. Unless all of the First above conditions precedent have been satisfied, Lessee's exercise of the Option Termshall be of no force or effect and the Option shall lapse. At Tenant’s request during If all of the three-month periods described above conditions precedent are satisfied, then the Lease Term shall automatically be extended for the Option Period and all of the terms, conditions and provisions of this Lease shall continue in full force and effect throughout the preceding sentenceOption Period, Landlord shall, except that the Base Rent to be paid by Lessee for the later of (a) thirty (30) days after such request and Option Period shall be adjusted as provided below.
(b) ten The Base Rent for the Option Periods shall be as follows:
(101) months before For the first Option Period, the Base Rent shall be an amount equal to ninety-five percent (95%) of the fair market rental value of the Premises, but in no event (A) less than seventy-six cents ($0.76) per rentable square foot, or (B) greater than eighty-five and one-half cents ($0.855) per rentable square foot. Such Base Rent shall be increased as of the commencement of the First or Second thirty-first (31st) month of the first Option TermPeriod by twelve and one-half percent (12.5%) over the Base Rent payable for the immediately preceding month.
(2) For the second and third Option Periods, the Base Rent shall be increased by twelve and one-half percent (12.5%) over the Base Rent payable for the immediately preceding period, and shall be increased as of the commencement of the thirty-first (31st) month of the second and third Option Periods, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of by twelve and one-half percent (12.5%) over the Fair Market Rental Base Rent payable for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essenceimmediately preceding month.
Appears in 1 contract
Samples: Single Tenant Industrial Lease Agreement (Western Digital Corp)
Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement (a) The Borrower may request an extension of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option to extend the term of this Lease for two Original Maturity Date (2) additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Extension Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60”) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than date twelve (12) months from the Original Maturity Date (the “First Extension Maturity Date”), upon satisfaction of each of the following conditions precedent:
(i) The Borrower shall provide the Lender with written notice of the Borrower’s request to exercise the First Extension Option not more than ninety (90) days but not less than thirty (30) days prior to the expiration Original Maturity Date (such notice, the “First Option to Extend Notice”);
(ii) No Default shall have occurred and be continuing as of either or both of (i) the First Extension DSCR Test Date, and (ii) the Original Maturity Date, and the Borrower shall so certify in writing;
(iii) The Borrower shall execute or cause the execution of all documents reasonably required by the Lender to exercise the First Extension Option and shall deliver to the Lender, at the Borrower’s sole cost and expense, such title insurance endorsements reasonably required by the Lender;
(iv) On the First Extension DSCR Test Date, the Borrower shall pay to the Lender an extension fee equal to 0.25% of the Base TermOutstanding Credit Exposure as of the First Extension DSCR Test Date; and
(v) As of the First Extension DSCR Test Date, and Tenant the Project shall exercise the Second Option, if at all, by giving written notice to Landlord have a Debt Service Coverage Ratio of such exercise not less than nine 1.10 to 1.0.
(9b) months and not more than The Borrower may request an extension of the First Extension Maturity Date (the “Second Extension Option”) to the date twelve (12) months prior to from the expiration First Extension Maturity Date (the “Second Extension Maturity Date”), upon satisfaction of each of the First Option Term. At Tenantfollowing conditions precedent:
(i) The Borrower shall provide the Lender with written notice of the Borrower’s request during to exercise the three-month periods described in the preceding sentence, Landlord shall, by the later of Second Extension Option not more than ninety (a90) days but not less than thirty (30) days after prior to the First Extension Maturity Date (such request notice, the “Second Option to Extend Notice”);
(ii) No Default shall have occurred and be continuing as of either or both of (i) the Second Extension DSCR Test Date, and (bii) ten the First Extension Maturity Date, and the Borrower shall so certify in writing;
(10iii) months before The Borrower shall execute or cause the commencement execution of all documents reasonably required by the Lender to exercise the Second Extension Option and shall deliver to the Lender, at the Borrower’s sole cost and expense, such title insurance endorsements reasonably required by the Lender;
(iv) On the Second Extension DSCR Test Date, the Borrower shall pay to the Lender an extension fee equal to 0.25% of the First or Second Option Term, Outstanding Credit Exposure as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for Second Extension DSCR Test Date; and
(v) As of the Premises (Second Extension DSCR Test Date, the Project shall have a Debt Service Coverage Ratio of not less than 1.25 to 1.0. Except as described in Section 5.3 hereof). The Second Option may be exercised only if modified by the First Extension Option is exercised. An exercise and the Second Extension Option, the terms and conditions of an Option this Agreement and the other Loan Documents as modified and approved by the Lender shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essenceremain unmodified and in full force and effect.
Appears in 1 contract
Samples: Construction Loan Agreement (Global Growth Trust, Inc.)
Options to Extend. Provided that, both at the time of giving notice of exercise or at the commencement of the First or Second Option TermExtended Term (as hereinafter defined), as applicable(i) this Lease is in full force and effect, and (ii) no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right occurred and option to extend the term of this Lease for two be continuing (2) additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, either at the time of giving notice of exercise or at the commencement of the First Extended Term), and (iii) Original Tenant is in occupancy of not less than 75% of the Premises and Original Tenant shall not have assigned this Lease or Second Option Termsublet more than 25% of the Premises (other than a transfer permitted without Landlord’s consent pursuant to Section 6.1(b)) (any of which conditions described in clauses (i), as applicable(ii), an Inchoate Default has occurred which is continuing, and (iii) may be waived by Landlord shall provide Tenant with written notice thereofat any time in Landlord’s sole discretion), Tenant shall have sixty the option to extend the Term of this Lease for up to one (601) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty extended term (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Extended Term”, and the five ) of seven (57) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, years by giving written notice to Landlord of such exercise (an “Extension Notice”) not less than nine (9) months and not more later than twelve (12) months prior to the expiration date of the Base Term. The effective giving of such notice of extension by Tenant shall automatically extend the Term of this Lease for the Extended Term, and no instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, this Lease shall automatically terminate at the end of the Term, and Tenant shall exercise have no further option to extend the Second OptionTerm of this Lease. The Extended Term shall commence on the day immediately succeeding the expiration date of the original Term, if at all, by giving written notice to Landlord and shall end on the day immediately preceding the seventh (7th) anniversary of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Extended Term. At Tenant’s request during The Extended Term shall be on all the three-month periods described in terms and conditions of this Lease, except: (x) Tenant shall have no further option to extend the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate (y) the Basic Rent for the Extended Term shall be one-hundred percent (100%) of the Fair Market Rental for Value of the Premises as of the commencement of the Extended Term, taking into account all then relevant factors and determined pursuant to Section 16.2 below, and (as described in Section 5.3 hereof)z) Landlord shall not be required to furnish any materials or perform any work to prepare the Premises for Tenant’s occupancy during the Extended Term and Landlord shall not be required to provide or pay any work allowance or reimburse Tenant for any alterations made or to be made by Tenant, or to grant Tenant any rent concession with respect to the Extended Term. The Second Option may be exercised only if termination of this Lease during the First Option is exercisedinitial Term shall terminate and render void any option or right on Tenant’s part to extend this Lease for any Extended Term, and nothing contained in this Section 16.1 shall prevent Landlord from exercising any right granted to or reserved by Landlord in this Lease to terminate this Lease. An exercise of an Option Tenant’s right under this Article 16 shall be irrevocable. If personal to the Original Tenant fails under this Lease and shall not apply in favor of or be exercisable by any assignee of this Lease (other than a permitted transferee pursuant to give written notice Section 6.1(b) of this Lease), nor any sublessee of all or any portion of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essencePremises.
Appears in 1 contract
Options to Extend. Provided thatthat (i) Tenant has not sublet any portion of the Premises without Landlord’s consent in violation of this Lease, (ii) the Premises have been expanded pursuant to the terms of Section 2.1(d) above, and (iii) at the time of giving notice of exercise or and at all times prior to the commencement of the First or Second Option Term, Extended Term (as applicable, no Event of Default or Inchoate Default has occurred which is continuingdefined below), Tenant shall have not be in Default under this Lease, the right and option to extend the term Term of this Lease for shall be subject to two (2) extension options, each for an additional periods period of five sixty (560) years each upon the same terms and conditions herein applicable to the Base Termmonths (each, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Extension Option” and collectively, as the “Extension Options.” In the event that”), at the time of giving notice of exercise or at the commencement commencing as of the First or Second Option expiration of the then-current Term, as applicable, an Inchoate Default has occurred which and expiring on the date that is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days full calendar months thereafter (each, an “Extended Term”), exercisable as follows:
(1) The Extension Options shall be upon the same material terms and conditions contained in this Lease, except that (i) the initial Monthly Base Rent for the Premises shall be equal to cure such Inchoate Default following such written notice, the applicable greater of (A) the Fair Market Rent (as defined in Section 2.2(d)(2) below) for the Premises as of the first month of the Extension Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, determined in the event such Inchoate Default is cured within such sixty manner set forth in Section 2.2(d)(3) below, or (60B) day period the Monthly Base Rent in effect as of the expiration of the then- current Term; and (ii) Tenant shall accept the Premises in an “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises unless required by the terms and conditions of this Lease, including without limitation any maintenance and repair obligations of Landlord waives under this Lease.
(2) Tenant’s election to exercise an Extension Option must be given to Landlord in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not no less than nine (9) months 270 days and not no more than twelve (12) months 365 days prior to the expiration of the Base Term, and Tenant shall exercise then-current Term (the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term“Extension Notice”). At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) Within thirty (30) days after such request and (b) ten (10) months before the commencement of Landlord’s receipt of the First or Second Option TermExtension Notice, as applicable, provide Landlord shall send Tenant with a written notice setting forth of Landlord’s estimate determination of the Fair Market Rental Rent for the Premises (as described in Section 5.3 hereofthe “Fair Market Rent Notice”). The Second Option may be exercised only For purposes of this Section, the term “Fair Market Rent” shall mean the base rental rate, periodic rental rate adjustment and other charges and increases, if any, for space comparable in size, location and quality to the First Option is exercisedPremises under a primary lease (and not sublease) to new or renewing tenants, for a comparable term with a tenant improvement allowance, if applicable and taking into consideration such amenities as existing improvements, view, floor on which the Premises are situated and the like, situated in comparable buildings in Emeryville, California. An exercise of Notwithstanding anything to the contrary contained herein, an Extension Option shall automatically terminate and be irrevocable. If of no further force or effect, whether or not Tenant fails to give written notice has timely exercised the applicable Extension Option, if a Default exists at the time of the exercise of the applicable Extension Option within or at the time provided above, such Option shall automatically terminate, time being of commencement of the essenceapplicable Extended Term.
Appears in 1 contract
Options to Extend. Provided thatLandlord hereby grants to Tenant, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option to extend the term of this Lease for two (2) additional periods of five options (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” Renewal Options”), each to extend the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as Term for a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which (the term is extended “Renewal Terms”) after the expiration of the initial Lease Term, or after the expiration of the initial Renewal Term, as the case may be. If exercised, and if the conditions applicable thereto have been satisfied, the Renewal Term shall commence immediately following the end of the initial Term or the initial Renewal Term, as the case may be. The Renewal Options herein granted to Tenant shall be subject to, and shall be exercised in accordance with, the following terms and conditions:
(1) Tenant may exercise a Renewal Option with respect to all or a portion of the then-current Premises so along as the same contains at least two (2) full contiguous floors in the event the First Building. Each Renewal Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” shall be exercisable only by notice given by Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less later than nine nineteen (9) months and not more than twelve (1219) months prior to the expiration of the Base Term, and Tenant shall exercise initial Term or the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option initial Renewal Term, as applicablethe case may be.
(2) All terms and conditions of this Lease shall be applicable during each Renewal Term, provide Tenant with a written notice setting including, but not limited to, those set forth Landlord’s estimate in Section 5 hereof except that the amount of Rent charged for each of the Fair Renewal Terms shall be equal to ninety-five percent (95%) of the “Prevailing Market Rental Rent” (as hereafter defined) for the portion of the Premises for which Tenant has exercised the subject Renewal Term.
(as described 3) If Tenant’s notice is not given timely, then Tenant’s subject Renewal Option, and any subsequent Renewal Option, shall be of no further force or effect (it being agreed that time shall be of the essence in Section 5.3 hereofTenant’s delivery of such notice of exercise of its Renewal Options to Landlord and that, if such notice is not so delivered within the time aforesaid, Landlord will rely to its detriment on Tenant’s failure to give such notice). The Second Option may be exercised only if If a Material Default exists at the First Option is exercised. An time Tenant delivers to Landlord notice of Tenant’s exercise of an a Renewal Option, then Landlord may elect to invalidate Tenant’s exercise of the subject Renewal Option by delivering notice to Tenant within five (5) business days after receipt of Tenant’s notice of exercise. If such invalidation notice (i) is timely and properly delivered by Landlord to Tenant in accordance with the terms of this Lease, (ii) describes the subject Material Default in reasonable detail, and (iii) states that Landlord has elected pursuant to that notice and the terms of this Section 45, to invalidate Tenant’s exercise of the subject Renewal Option, then Tenant’s notice of exercise of the subject Renewal Option shall be irrevocableinvalid; provided, however, such invalidation shall not prevent Tenant from later exercising any Renewal Option through the last day permitted for the same under this Section 45. If Tenant Landlord fails to give written timely and properly deliver notice of the invalidation with respect to a prior exercise by Tenant of a Renewal Option, then Tenant’s prior exercise of such Renewal Option shall remain valid and in effect. It is agreed that time shall be of the applicable Option essence in Landlord’s delivery of an invalidation notice to Tenant in accordance with the foregoing, and if any such notice is not so timely and properly delivered within the time provided period specified above, Tenant will rely to its detriment on Landlord’s failure to give such Option notice.
(4) The term “Prevailing Market Rent” for purposes of this Lease shall automatically terminatemean what a willing, time being comparable, new, non-expansion, non-renewal, non-equity tenant would pay, and a willing landlord of a comparable building located within the Ballston, Virginia submarket would accept, at arm’s length, for a comparable amount of office space for a comparable period of time, in either case giving appropriate consideration to: (i) the age, condition and location of the essenceBuilding; (ii) the annual rental rates per rentable square foot; (iii) the standard of measurement by which the rentable square footage is measured; (iv) the ratio of rentable square feet to usable square feet; (v) the type of escalation clauses (including, without limitation, type, base year and stop); (vi) the extent of building services; (vii) the extent of liability under the escalation clauses (e.g. whether determined on a “net lease” basis or by increases over a particular base year or base dollar amount); (viii) abatement provisions reflecting free rent and/or no rent during the period of construction or any other period during the lease term; (ix) brokerage commissions, if any, which would be payable by Landlord in a comparable transaction; (x) length of the lease term; (xi) size and location of space being leased; (xii) building standard work letter and/or tenant improvement allowances, if any; (xiii) other economic concessions, if any; (xiv) Tenant’s creditworthiness; and (xv) other general applicable conditions of tenancy for a comparable new transaction, so that Tenant will obtain the same rent and other economic benefits that Landlord would otherwise give to any comparable prospective tenant and so that Landlord will make the same economic payments and concessions that Landlord would otherwise make in a comparable new transaction. If, for example, after applying the criteria set forth above, comparable leases provide a new tenant with comparable space at Thirty Dollars ($30.00) per rentable square foot, with a Ten Dollars ($10.00) operating expense allowance, three (3) months at no rent to construct improvements, four (4) months free rent, Fifty Dollars ($50.00) per rentable square foot tenant improvement allowance, a “lease takeover” obligation in the amount of One Hundred Thousand Dollars ($100,000.00), a brokerage commission of Fifty Thousand Dollars ($50,000.00), and certain other generally applicable economic terms, the Prevailing Market Rent shall not be Thirty Dollars ($30.00) per rentable square foot only, but shall be the equivalent of Thirty Dollars ($30.00) per rentable square foot, a Ten Dollar ($10.00) operating expense allowance, three (3) months at no rent to construct improvements or three (3) months additional free rent in lieu of such construction period, an additional four (4) months free rent, Fifty Dollars ($50.00) per rentable square foot tenant improvement allowance or payment in lieu of such allowance, One Hundred Thousand Dollars ($100,000.00) cash payment in lieu of a lease takeover, Fifty Thousand Dollars ($50,000.00) cash payment in lieu of a brokerage commission (or, if a broker is retained by Tenant with respect to the subject space, a cash payment equal to the difference between Fifty Thousand Dollars ($50,000.00) and the commissions payable to Tenant’s broker), and the other generally applicable economic terms; provided, however, that in no event shall the foregoing example be deemed to state or imply any obligation on the part of Landlord to make any cash payment to Tenant or to provide any of the types of concessions set forth in such example.
Appears in 1 contract
Options to Extend. Provided that15.1 So long as Ultratech Stepper, at Inc. (or a Permitted Assignee) is the time of giving notice of exercise Tenant hereunder and occupies sixty five percent (65%) or at the commencement more of the First Leased Premises (PROVIDED if Ultratech Stepper, Inc. (or Second Option Terma Permitted Assignee) does not occupy the entirety of the Leased Premises, as applicablethe full amount of the Letter of Credit must be maintained and/or reinstated by Tenant throughout the duration of the applicable Extension Period), no Event of Default or Inchoate Default has occurred which is continuingand subject to the condition set forth in clause (b) below, Tenant shall have the right and option two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for two (2) additional periods a period of five (5) years each upon from the same terms and conditions herein applicable to the Base Term, except for the amount expiration of the Annual Base Renttenth year of the Lease Term (the "First Extension Period"), the first option being referred to herein as the “First Option,” and the second option being referred to herein as (the “"Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time Extension Period") for a period of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which years from the term is extended in the event expiration of the First Option is exercised is referred Extension Period, subject to herein as the “First Option Term”, and the five following conditions:
(5a) year period for which the term is extended in the event the Second Option is exercised is referred Each option to herein as the “Second Option Term.” Tenant extend shall exercise the First Optionbe exercised, if at all, by giving written notice of exercise given to Landlord of such exercise not less than nine (9) months and by Tenant not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not nor less than nine (9) months and not more than twelve (12) months prior to the expiration of the tenth year of the Lease Term or the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentenceExtension Period, Landlord shall, by the later of (a) thirty (30) days after such request and as applicable;
(b) ten (10) months before Anything herein to the contrary notwithstanding, if Tenant is in default beyond any applicable cure periods under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Option TermExtension Period, as applicable, provide Tenant with Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a written notice setting forth Landlord’s estimate of timely fashion, the Fair Market Rental Lease shall be extended for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise term of the applicable Option within the time provided above, such Option shall automatically terminate, time being extension period upon all of the essenceterms and conditions of this Lease, provided that the Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, increased as set forth below. For purposes hereof, "Fair Market Rent" shall mean, collectively, the Base Monthly Rent and any annual increases determined pursuant to the process described below.
Appears in 1 contract
Samples: Lease (Ultratech Stepper Inc)
Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, (a) Tenant shall have the right and option to extend the term of this Lease for two (2) additional options to extend the Term of this Lease (the "Options to Extend") for successive periods of five ten (510) years each upon (the same "Extension Periods"), subject to and on the terms and conditions herein applicable set forth herein. Tenant may only exercise the Options to Extend with respect to the Base Termentire Premises. If Tenant shall desire to exercise any Option to Extend, except for it shall give Landlord a notice (the amount "Inquiry Notice") of such desire not later than fifteen (15) months prior to the expiration of the Annual Base Rent, Initial Term of this Lease or the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectivelypreceding Extension Period, as the “Options.” In case may be. Thereafter, the event that, at Fair Market Rent (as defined in Subsection (c) below) for the time of giving notice of exercise or at applicable Extension Period shall be determined in accordance with Subsection (d) below. After the commencement of the First or Second Option Term, as applicable, an Inchoate Default applicable Fair Market Rent has occurred which is continuing, Landlord shall provide Tenant with written notice thereofbeen so determined, Tenant shall have sixty (60) days exercise each Option to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, Extend by giving written Landlord notice (the "Exercise Notice") of its election to Landlord of such exercise do so not less than nine (9) months and not more later than twelve (12) months prior to the expiration of the Base TermInitial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(b) Notwithstanding any contrary provision of this Lease, each Option to Extend and any exercise by Tenant thereof shall be void and of no force or effect unless on the dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant shall exercise the Second Option, if at all, by giving written notice has not assigned or subleased (or agreed to Landlord of such exercise not less than nine (9assign or sublease) months and not more than fifty percent (50%) of the rentable floor area of the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to the expiration of the First Initial Term or the preceding Extension Period, as the case may be, in accordance with the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option Termto Extend, Landlord shall give Tenant notice of Landlord's determination of the Fair Market Rent for the applicable Extension Period. At Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to Landlord's determination of the Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant’s request during 's agreement with or objection to Landlord's determination of the three-month periods Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to be Landlord's determination of the Fair Market Rent as set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding sentencesubsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall, shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the later of (a) Fair Market Rent for the applicable Extension Period within thirty (30) days after Landlord's appointment of the second Arbitrator. On or before the expiration of such request and thirty (b30) day period, the two Arbitrators shall confer to compare their respective determinations of the Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than or equal to ten percent (10%) of the lower of said amounts then the final determination of the Fair Market Rent shall be equal to the average of said amounts. If such difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) months before days thereafter to appoint a third Arbitrator (the commencement of the First or Second Option Term"Third Arbitrator"), as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of who shall be instructed to determine the Fair Market Rental Rent for the Premises applicable Extension Period within ten (10) days after its appointment by selecting one of the amounts determined by the other two Arbitrators. Each party shall bear the cost of the Arbitrator selected by such party. The cost for the Third Arbitrator, if any, shall be shared equally by Landlord and Tenant.
(f) Regardless of the manner in which the Extension Rent is determined, the Annual Fixed Rent for each Extension Period shall be subject to adjustment as described set forth in Section 5.3 4.1(b) hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essence.
Appears in 1 contract
Options to Extend. Provided that15.1 So long as Polycom, at Inc. (and, to the time extent provided in Section 7.9, its successors and assigns in connection with transfers to affiliates, transfers in connection with mergers or sales of giving notice assets, or transfers of exercise or at a controlling percentage of its capital stock) is the commencement Tenant hereunder and occupies more than fifty percent (50%) of the First or Second Option TermLeased Premises, as applicable, no Event of Default or Inchoate Default has occurred which is continuingand subject to the condition set forth in clause (b) below, Tenant shall have the right and option two options to extend the term of this Lease with respect to the entirety of the Premises, the first for two (2) additional periods a period of five (5) years each upon from the same terms Lease Expiration Date (the "First Extension Period"), and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as (the “"Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time Extension Period") for a period of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which years from the term is extended in the event expiration of the First Option is exercised is referred Extension Period, subject to herein as the “First Option Term”, and the five following conditions:
(5a) year period for which the term is extended in the event the Second Option is exercised is referred Each option to herein as the “Second Option Term.” Tenant extend shall exercise the First Optionbe exercised, if at all, by giving written notice of exercise given to Landlord of such exercise by Tenant not less than nine two hundred seventy (9270) months and not more than twelve (12) months days prior to the expiration Lease Expiration Date of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to Lease Term or the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentenceExtension Period, Landlord shall, by the later of (a) thirty (30) days after such request and as applicable;
(b) ten Anything herein to the contrary notwithstanding, if Tenant is in default of a monetary obligation or material non-monetary obligation (10) months before after written notice has been given and cure periods, if applicable, have expired), either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Option TermExtension Period, as applicable, provide Tenant with Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a written notice setting forth Landlord’s estimate timely fashion, the Lease shall be extended for the term of the applicable extension period upon all of the terms and conditions of this Lease, provided that the Base Monthly Rent for each extension period shall be the "Fair Market Rental Rent" for the Leased Premises, increased after 12 months in accordance with Article 1. For purposes hereof, "Fair Market Rent" shall mean the base rent for the Premises, based upon the rental rate per square foot that an unaffiliated landlord and tenant would agree to for a lease on the terms of this Lease for the relevant Extension Period for comparable premises in the vicinity of the Property, determined pursuant to the process described below. In no event, however, shall any adjustment of Base Monthly Rent pursuant to this paragraph result in a decrease of the Base Monthly Rent for the Premises below the amount due from Tenant for the preceding portion of the initial Lease Term (as described in Section 5.3 hereof). The Second Option may be exercised only if or the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided aboveExtension Period, such Option shall automatically terminate, time being of the essenceif applicable) for which Base Monthly Rent had been fixed.
Appears in 1 contract
Samples: Lease Agreement (Polycom Inc)
Options to Extend. Provided that15.1 So long as Juniper Networks, at Inc. (or a Permitted Assignee) is the time of giving notice of exercise or at Tenant hereunder, and subject to the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuingcondition set forth in clause (b) below, Tenant shall have the right and option two options to extend the term of this Lease with respect to the entirety of the Leased Premises, the first for two (2) additional periods a period of five (5) years each upon from the same terms and conditions herein applicable to the Base Term, except for the amount expiration of the Annual Base Rentlast year of the Lease Term (the "First Extension Period"), the first option being referred to herein as the “First Option,” and the second option being referred to herein as (the “"Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time Extension Period") for a period of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which years from the term is extended in the event expiration of the First Option is exercised is referred Extension Period, subject to herein as the “First Option Term”, and the five following conditions:
(5a) year period for which the term is extended in the event the Second Option is exercised is referred Each option to herein as the “Second Option Term.” Tenant extend shall exercise the First Optionbe exercised, if at all, by giving written notice of exercise given to Landlord of such exercise not less than nine (9) months and by Tenant not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not nor less than nine (9) months and not more than twelve (12) months prior to the expiration of the last year of the Lease Term or the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentenceExtension Period, Landlord shall, by the later of (a) thirty (30) days after such request and as applicable;
(b) ten (10) months before Anything herein to the contrary notwithstanding, if Tenant is in default under any of the material terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Option TermExtension Period, as applicable, provide Landlord shall have, in addition to all of Landlord's other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant.
15.2 In the event the applicable option is exercised in a timely fashion, the Lease shall be extended for the term of the applicable extension period upon all of the terms and conditions of this Lease, provided that the Base Monthly Rent for each extension period shall be the "Fair Market Rent" for the Leased Premises, determined as set forth below, with annual increases as determined as part of the process set forth below.
15.3 Within 30 days after receipt of Tenant's notice of exercise, Landlord shall notify Tenant with a written notice setting forth in writing of Landlord’s 's estimate of the Fair Market Rental Base Monthly Rent for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise first year of the applicable Option within extension period, and Landlord's estimate of annual increases. For purposes hereof, "Fair Market Rent" shall mean collectively, (1) Base Monthly Rent for the first year of the applicable extension period and (2) the annual increases determined at the time provided aboveBase Monthly Rent for the first year is determined. Within 30 days after receipt of such notice from Landlord, Tenant shall have the right either to (i) accept Landlord's estimate of Fair Market Rent or (ii) elect to arbitrate Landlord's estimate of Fair Market Rent, such Option arbitration to be conducted pursuant to the provisions hereof. Failure on the part of Tenant to require arbitration of Fair Market Rent within such 30-day period shall automatically terminate, time being constitute acceptance of the essence.Fair
Appears in 1 contract
Options to Extend. Provided thatSo long as Aruba Networks, Inc. or a Permitted Assignee is the Tenant hereunder and occupies at the time of giving notice of exercise or at the commencement least three (3) contiguous full floors of the First or Second Option TermLeased Premises, as applicable, no Event of Default or Inchoate Default has occurred which is continuingand subject to the conditions set forth below, Tenant shall have the right and option two options to extend the term of this Lease with respect to three (3) or more contiguous full floors of the Leased Premises (but not more space than then being leased by Tenant at the time the applicable extension option is exercised), the first for two (2) additional periods a period of five (5) years each upon from the same terms and conditions herein applicable to the Base Term, except for the amount expiration of the Annual Base Rentinitial, the first option being referred to herein as unextended Lease Term (the “First Option,” Extension Period”), and the second option being referred to herein as (the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time Extension Period”) for a period of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which years from the term is extended in the event expiration of the First Option is exercised is referred Extension Period, subject to herein as the “First Option Term”, and the five following conditions:
(5a) year period for which the term is extended in the event the Second Option is exercised is referred Each option to herein as the “Second Option Term.” Tenant extend shall exercise the First Optionbe exercised, if at all, by giving written notice of exercise given to Landlord of such exercise not less than nine (9) months and by Tenant not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not nor less than nine (9) months and not more than twelve (12) months prior to the expiration of the initial, unextended Lease Term or the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentenceExtension Period, Landlord shall, by the later of (a) thirty (30) days after such request and as applicable;
(b) ten If Tenant exercises either extension option for less that the entire five (105) months before floors of the initial Leased Premises (or less than the entire five (5) floors of the initial Leased Premises plus the Identified ROFR Space, if it is added to the Leased Premises pursuant to Paragraph 17.1 below), the floors with respect to which Tenant exercises such option(s) must include the top-most floor, or bottom-most floor, then being leased at the time the applicable option is exercised.
(c) Anything herein to the contrary notwithstanding, if Tenant is in monetary or material non-monetary default under any of the terms, covenants or conditions of this Lease, either at the time Tenant exercises either extension option or on the commencement date of the First Extension Period or the Second Option TermExtension Period, as applicable, provide Tenant with a written notice setting forth Landlord shall have, in addition to all of Landlord’s estimate other rights and remedies provided in this Lease, the right to terminate such option(s) to extend upon notice to Tenant within five (5) business days after receipt of the Fair Market Rental for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option Tenant’s extension notice or else Landlord shall be irrevocabledeemed to have waived Landlord’s right to terminate such option. If For the avoidance of confusion, the foregoing shall not be read to prevent Tenant fails to give written notice of the exercise of from curing the applicable Option default and then exercising the applicable option to extend once the default is cured if such cure is completed within the time provided aboveapplicable cure period, such Option shall automatically terminateif any, time being of the essence.expressly set forth in this Lease. Building D
Appears in 1 contract
Options to Extend. Provided thatLessor hereby grants to Lessee two (2) options (each, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, Tenant shall have the right and option an "Option") to extend the term Term of this Lease for two (2) an additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereof, Tenant shall have sixty (60) days month period for each Option, commencing when the prior term expires upon each and all of the following terms and conditions:
(i) Lessee gives to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty Lessor and Lessor actually receives (60which receipt may be independently confirmed by Lessee) day period so long as Tenant on a date which is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition prior to the effectiveness date that the option period would commence (if exercised) by at least six (6) and not more than nine (9) months, a written notice in accordance with the Lease of the exercise of the Option within such sixty (60) day period, the Option shall be deemed options to have been timely exercised. The five (5) year period extend this Lease for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the Base Term, and Tenant shall exercise the Second Option, if at all, by giving written notice to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior to the expiration of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, by the later of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminatesaid additional terms, time being of the essence. If said notification of the exercise of said Options are not so given and received, the Options shall automatically expire; said Options may only be exercised consecutively;
(ii) The provisions of Paragraph 39, including the provision relating to default of Lessee set forth in Paragraph 39.4 of this Lease are conditions of the Options;
(iii) All of the terms and conditions of this Lease except where specifically modified by these Options shall apply;
(iv) The monthly Base Rent for each month of the applicable Option period shall be calculated as follows, using the methods indicated below: MARKET RENTAL VALUE ADJUSTMENTS (MRV)
(a) On the 10th anniversary of the Commencement Date if the first Option to extend is timely exercised and again five (5) years later if the second Option to extend is timely exercised, Base Rent shall be adjusted to the "Market Rental Value" of the Premises as follows:
1. Four months prior to the Market Rental Value (MRV) Adjustment Dates described above, Lessor and Lessee shall meet to establish an agreed upon new MRV for comparable space in the Carlsbad Research Center for the specified term. In determining MRV, the comparable space will be limited to an industrial building with offices, electrical distribution and other typical warehouse space such as but not limited to bath rooms but specifically excluding the peculiar attributes required by a biopharmaceutical firm such as refrigeration, and required plumbing and piping. If agreement cannot be reached, then:
(i) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next thirty (30) days. Any associated costs will be split equally between the parties, or
(ii) Both Lessor and Lessee shall each immediately select and pay the appraiser or broker of their choice to establish a MRV within the next thirty (30) days. If, for any reason, either one of the appraisals is not completed within the next thirty (30) days, as stipulated, then the appraisal that is completed at that time shall automatically become the new MRV. If both appraisals are completed and the two appraisers/brokers cannot agree on a reasonable average MRV then they shall immediately select a third mutually acceptable appraiser/broker to establish a third MRV within the next thirty (30) days. The average of the two appraisals closest in value shall then become the new MRV. The costs of the third appraisal will be split equally between the parties.
2. If Lessee does not add additional mezzanine to the existing 5,100 sq. ft., the minimum MRV will be One and Five One-Hundredths Dollars ($1.05) per ft. for the eleventh (11th) year and One and Twenty-One One-Hundredths Dollars ($1.21) for the sixteenth (16th) year. If Lessee adds additional mezzanine during the Term of the Lease, the minimum MRV will be computed in the same manner as the stated minimums were determined, the example of which is shown on the attached Schedule 56. In any event, the new MRV shall not be less than the Base Rent payable for the month immediately preceding the date for rent adjustment.
(b) Upon the establishment of each new MRV:
1. The monthly Base Rent so calculated for each Term as specified in subsection (a) above will become the new "Base Rent" for the purpose of calculating any further CPI adjustments as specified in Section 55 above; and
2. the first month of each Market Rental Value term as specified in subsection (a) above shall become the new "Base Month" for the purpose of calculating any further Cost of Living Adjustments as specified in Paragraph 55.
Appears in 1 contract
Samples: Standard Industrial Commercial Single Tenant Lease Net (Immune Response Corp)
Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement Tenant is not in default under any of the First terms, covenants or Second Option Term, as applicable, no Event conditions of Default or Inchoate Default has occurred which is continuingthis Lease and subject to the terms and conditions set forth hereafter, Tenant shall have is hereby granted the right and option to extend the term of Lease for the Premises leased hereunder for two consecutive five year periods:
a) Tenant's option to extend this Lease is contingent upon Tenant also extending the term of lease for two (2) additional periods of five (5) years each upon all the same terms and conditions herein applicable to Buildings then leased within the Base Term, except for the amount of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In Complex. It is further agreed that in the event thatTenant does not lease all the buildings within the Complex, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, an Inchoate Default has occurred which is continuing, Landlord shall provide Tenant with written notice thereofnevertheless, Tenant shall have sixty (60the option to extend the lease on the buildings so leased per the terms of this paragraph 45.
b) days to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or shall notify Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the Tenant's exercise of its option to extend the Option Lease for each Building leased within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, by giving written notice to Landlord of such exercise not Complex no less than nine (9) months and not more than twelve (12) 12 months prior to the earliest lease expiration date of any Building leased within the Complex.
c) The Lease for each building within The Complex shall be extended for a period of five years commencing upon the day after the Lease termination date for such Building within the Complex and shall terminate five years later.
d) The monthly Basic Rent during the extended term shall be 16 as defined in paragraph 4A.
e) The then current payment for Additional Rent described in paragraph 4 D of the Base Term, and Tenant Lease shall exercise the Second Option, if at all, by giving written notice continue to Landlord of such exercise not less than nine (9) months and not more than twelve (12) months prior be adjusted according to the expiration paragraph 4D of the First Option Term. At Tenant’s request during the three-month periods described in the preceding sentence, Landlord shall, Lease.
f) This option to extend can be exercised solely by the later Tenant for its sole use of (a) thirty (30) days after such request and (b) ten (10) months before the commencement of the First or Second Option Term, as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of the Fair Market Rental for the Premises (as described including any permitted subtenants and affiliates which in Section 5.3 hereof). The Second Option total do not exceed 25% of a Complex) and may not be transferred or assigned to any sublessee or other party, nor may this option be exercised only by Tenant if the First Option more than 25% of a Complex is exercised. An exercise of an Option shall be irrevocable. If then subleased to a party other than Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essenceor Tenant's affiliates.
Appears in 1 contract
Samples: Lease Agreement (Intuit Inc)
Options to Extend. Provided that, at the time of giving notice of exercise or at the commencement of the First or Second Option Term, as applicable, no Event of Default or Inchoate Default has occurred which is continuing, (a) Tenant shall have the right and option to extend the term of this Lease for two (2) additional options to extend the Term of this Lease (the "Options to Extend") for successive periods of five (5) years each upon (the same "Extension Periods"), subject to and on the terms and conditions herein applicable set forth herein. Tenant may only exercise the Options to Extend with respect to the Base Termentire Premises. If Tenant shall desire to exercise any Option to Extend, except for it shall give Landlord a notice (the amount "Inquiry Notice") of such desire not later than fifteen (15) months prior to the expiration of the Annual Base Rent, Initial Term of this Lease or the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectivelypreceding Extension Period, as the “Options.” In case may be. Thereafter, the event that, at Fair Market Rent (as defined in Subsection (c) below) for the time of giving notice of exercise or at applicable Extension Period shall be determined in accordance with Subsection (d) below. After the commencement of the First or Second Option Term, as applicable, an Inchoate Default applicable Fair Market Rent has occurred which is continuing, Landlord shall provide Tenant with written notice thereofbeen so determined, Tenant shall have sixty (60) days exercise each Option to cure such Inchoate Default following such written notice, the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness of the exercise of the Option within such sixty (60) day period, the Option shall be deemed to have been timely exercised. The five (5) year period for which the term is extended in the event the First Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, Extend by giving written Landlord notice (the "Exercise Notice") of its election to Landlord of such exercise do so not less than nine (9) months and not more later than twelve (12) months prior to the expiration of the Base TermInitial Term of this Lease, or the preceding Extension Period, as the case may be. If Tenant fails to timely give either the Inquiry Notice or the Exercise Notice to Landlord with respect to any Option to Extend, Tenant shall be conclusively deemed to have waived such Option to Extend hereunder.
(b) Notwithstanding any contrary provision of this Lease, each Option to Extend and any exercise by Tenant thereof shall be void and of no force or effect unless on the dates Tenant gives Landlord its Inquiry Notice and Exercise Notice for each Option to Extend and on the date of commencement of the each Extension Period (i) this Lease is in full force and effect, (ii) there is no Event of Default of Tenant under this Lease, and (iii) Tenant shall exercise the Second Option, if at all, by giving written notice has not assigned or subleased (or agreed to Landlord of such exercise not less than nine (9assign or sublease) months and not more than fifty percent (50%) of the rentable floor area then comprising the Premises.
(c) All of the terms, provisions, covenants, and conditions of this Lease shall continue to apply during each Extension Period, except that the Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall be equal to the fair market rent for the Premises determined as of the date twelve (12) months prior to the expiration of the First Initial Term or the preceding Extension, Period, as the case may be, in accordance with the procedure set forth in Subsection (d) below (the "Fair Market Rent").
(d) The Fair Market Rent for each Extension Period shall be determined as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice with respect to any Option Termto Extend, Landlord shall give Tenant notice of Landlord's determination of the Fair Market Rent for the applicable Extension Period. At Within ten (10) days after Tenant receives such notice, Tenant shall notify Landlord of its agreement with or objection to Landlord's determination of the Fair Market Rent, whereupon the Fair Market Rent shall be determined by arbitration conducted in the manner set forth below. If Tenant does not notify Landlord within such ten (10) day period of Tenant’s request during 's agreement with or objection to Landlord's determination of the three-month periods Fair Market Rent, then the Fair Market Rent for the applicable Extension Period shall be deemed to fee Landlord's determination of the Fair Market Rent as set forth in the notice from Landlord described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's determination of Fair Market Rent under the preceding sentencesubsection, such notice shall also set forth a request for arbitration and Tenant's appointment of a commercial real estate broker having at least ten (10) years experience in the commercial leasing market in the City of Cambridge, Massachusetts (an "Arbitrator"). Within five (5) days thereafter, Landlord shall, shall by notice to Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to determine the later of (a) Fair Market Rent for the applicable Extension Period within thirty (30) days after Landlord's appointment of the second Arbitrator. On or before the expiration of such request and thirty (b30) day period, the two Arbitrators shall confer to compare their respective determinations of the Fair Market Rent. If the difference between the amounts so determined by the two Arbitrators is less than or equal to ten percent (10%) of the lower of said amounts then the final determination, of the Fair Market Rent shall be equal to the average of said amounts. If such difference between said amounts is greater than ten percent (10%), then the two arbitrators shall have ten (10) months before days thereafter to appoint a third Arbitrator (the commencement of the First or Second Option Term"Third Arbitrator"), as applicable, provide Tenant with a written notice setting forth Landlord’s estimate of who shall be instructed to determine the Fair Market Rental Rent for the Premises applicable Extension Period within ten (as described in Section 5.3 hereof)10) days after its appointment by selecting one of the amounts determined by the other two Arbitrators. Each party shall bear the cost of the Arbitrator selected by such party. The Second Option may be exercised only cost for the Third Arbitrator, if the First Option is exercised. An exercise of an Option any, shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essenceshared equally by Landlord and Tenant.
Appears in 1 contract
Samples: Lease (BioMed Realty Trust Inc)
Options to Extend. Provided thatthat Equinix, Inc., a Delaware corporation, or an Affiliate (as defined in Section 23.A. hereof) (said Equinix, Inc. or an Affiliate being hereinafter collectively referred to as "Equinix")
(i) is not then in default in the payment of any Rent due under this Lease and is not then in Default in the performance of any of its other obligations under this Lease, and (ii) has not been in Default more than once during the immediately preceding two (2) years of the Term, in each case both at the time of giving notice exercise of exercise or the Renewal Option, as hereinafter defined, in question, and at the commencement of the First or Second Option TermRenewal Period, as applicablehereinafter defined, no Event of Default or Inchoate Default has occurred which in question, and is continuing, Tenant shall have the right and option to extend the term of this Lease for two (2) additional periods of five (5) years each upon the same terms and conditions herein applicable to the Base Term, except for the amount then in occupancy of the Annual Base Rent, the first option being referred to herein as the “First Option,” the second option being referred to herein as the “Second Option,” and the First Option and Second Option being referred to herein, individually, as an “Option” and collectively, as the “Options.” In the event that, Premises at the time of giving notice exercise of exercise or the Renewal Option, as hereinafter defined, in question, and at the time of the commencement of the First or Second Option TermRenewal Period, as applicablehereinafter defined, an Inchoate Default has occurred which is continuingin question, Landlord shall provide Tenant with written notice thereof, Tenant Equinix shall have sixty three (603) days successive options (the "Renewal Options") to cure such Inchoate Default following such written notice, extend the applicable Option will not expire during such sixty (60) day period so long as Tenant is diligently pursuing such cure and, in the event such Inchoate Default is cured within such sixty (60) day period or Landlord waives in writing the obligation of Tenant to cure such Inchoate Default as a condition to the effectiveness Term of the exercise of the Option within such sixty (60) day periodLease, the Option shall be deemed to have been timely exercised. The each for a successive additional five (5) year period for which (the term is extended in "Renewal Periods") after the event expiration of the First Initial Term. Each Renewal Option is exercised is referred to herein as the “First Option Term”, and the five (5) year period for which the term is extended in the event the Second Option is exercised is referred to herein as the “Second Option Term.” Tenant shall exercise the First Option, if at all, be exercisable only by giving written notice given by Equinix to Landlord of such exercise not less than nine (9) months and not more later than twelve (12) months months, nor earlier than fifteen (15) months, prior to the expiration of the Base initial Term, and Tenant shall or the Renewal Period then in effect, as the case may be. In the event that Equinix does not timely exercise the Second a Renewal Option, if at allsaid Renewal Option and all successive Renewal Options shall be null and void and of no further force or effect, time being of the essence in the exercise of each Renewal Option and it being acknowledged and agreed by giving Equinix that Landlord shall be entitled to rely on any failure by Equinix to give written notice of its exercise of its Renewal Option by the date set forth herein for such exercise thereof. All terms and conditions of this Lease shall be applicable during the Renewal Period except that the amount of Base Rent charged for each Renewal Period shall be the then "Prevailing Market Rent", which shall be the rent for comparable space in comparable buildings in Loudoun County, Virginia; provided, however, that in no event shall the Prevailing Market Rent determined as aforesaid be deemed to be less than the Base Rent payable under this Lease during the Lease Year immediately preceding the first Lease Year of the Renewal Period. If within thirty (30) days following delivery of Equinix's notice, Landlord and Equinix have not mutually agreed on the Prevailing Market Rent for the Renewal Period in question, then within ten (10) days after the expiration of such thirty-day period, each party shall file written notice to Landlord the other setting forth the name and address of a Broker (as hereinafter defined) selected by such party who has agreed to act in such capacity, to determine the Prevailing Market Rent. If either party shall fall to select a Broker as aforesaid, the Prevailing Market Rent shall be determined by the Broker selected by the other party. Each Broker shall thereupon independently make his determination of the Prevailing Market Rent within twenty (20) days after the appointment of the second Broker. If the two Brokers' determinations are not the same, but the higher of such exercise not less than nine (9) months and two values is not more than twelve one hundred five percent (12105%) months prior to the expiration of the First Option Termlower of them, then the Prevailing Market Rent shall be deemed to be the average of the two values. At Tenant’s request during If the three-month periods higher of such two values is more than one hundred five percent (105%) of the lower of them, then the two Brokers shall jointly appoint a third Broker within ten (10) days after the second of the two determinations described in above has been rendered. The third Broker shall independently make his determination of the preceding sentence, Landlord shall, by Prevailing Market Rent within twenty (20) days after his appointment. The highest and the later lowest determinations of (a) value among the three Brokers shall be disregarded and the remaining determination shall be deemed to be the Prevailing Market Rent. Within thirty (30) days after such request and (b) ten (10) months before the commencement of Prevailing Market Rent is determined as aforesaid, the First or Second Option Term, as applicable, provide Tenant with a written notice parties shall execute an amendment to this Lease setting forth Landlord’s estimate of the Fair Market Rental new Rent to be paid for the Premises (as described in Section 5.3 hereof). The Second Option may be exercised only if the First Option is exercised. An exercise of an Option shall be irrevocable. If Tenant fails to give written notice of the exercise of the applicable Option within the time provided above, such Option shall automatically terminate, time being of the essenceRenewal Period.
Appears in 1 contract
Samples: Deed of Lease (Equinix Inc)
